Don’t expect early dismissal of FMLA lawsuit even if law doesn’t cover your organization

Some things in life are unfair … and expensive. Here is one good example:

Employers that don’t have enough employees to be covered by the FMLA (50 employees) won’t necessarily win dismissal of an FMLA lawsuit right away. If the employee wants to push the issue, you’ll likely have to go through the time and expense of litigation.

Recent case: Fortunato Martino sued his employer, Wolff Shoes, for allegedly denying him FMLA leave to care for his son. But the shoe company said it wasn’t even covered by the FMLA since it didn’t have enough employees to meet the “50-employee-within-a-75-mile-radius” rule.

No matter. A federal judge in Philadelphia ruled that the employee-threshold issue can’t be dealt with until it’s time for trial and after extensive (and expensive) discovery, depositions and trial preparation are completed.

The reason? Employees have the right to try to prove that their employers are “covered employers” (i.e., have more than 50 employees) at trial. (Martino v. Wolff Shoes, No. 06-3913, ED PA, 2007)

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